Beware the Slippery Slope

It isn’t often that within days of each other two news stories on disparate topics---drones and guns-- both highlight a method of analysis on different sides of the political spectrum that fosters poor public policy choices and conclusions.

Recently, news stories have abounded regarding the US Justice Department’s (“DOJ”) memo laying out the legal and practical arguments behind its drone strike policies that allow for the targeting of an American citizen abroad.
The ground rules that the Obama Administration operated under have been laid out in some detail in the documents that are now public.

It is probably safe to assume that for most Americans the rationale offered by the DOJ memo works. A person (a foreigner or the bearer of an American passport) who is committed to terror against the United States, who can’t be easily apprehended and is a combatant in the on-going war of terror, can be killed if he poses an imminent threat to our country. Numerous pundits have opined on the subject in recent weeks, many urging greater scrutiny by a judge, or some other quasi-judicial body, to vet the Americans on the list of possible targets. A compromise seems in the works.

But, the seeming rationality of the DOJ’s arguments and the widely discussed potential safeguards don’t seem to satisfy those who proffer a “slippery slope” method of argumentation. That is, “if we allow this activity…it is a slippery slope to losing liberty itself.”

The ACLU lost no time in attacking the memo upon its release as “profoundly disturbing.” The director of its National Security Project opined, “It’s hard to believe that it was produced in a democracy built on a system of checks and balances.” She questioned “whether the limits the executive purports to impose on its killing authority are as loosely defined as in this summary, because if they are, they ultimately mean little.” The implication being that there will be broad overreach by government officials out to kill innocents---despite the fact that but three Americans affiliated with terror organizations have been killed over the past decade by virtue of drone strikes.

Nevertheless, despite the obvious restraint and concern evidenced by the Obama Administration (and its predecessor) the dangers of the slippery slope are invoked to negate what has clearly been an effective and restrained method of defending America.

The slippery slope logic to negate reasonable and moderate measures of change is evident as well in the months since Sandy Hook. The slippery slope arguments of the National Rifle Association strain logic.

Virtually no gun control legislation can be passed, the NRA argues, because it will, almost inevitably, lead to abrogation of the Second Amendment and the right to bear arms.

For example, the NRA asserts that the mere act of compiling a list of gun owners can only be for two reasons “to tax them or to take them.” No middle ground or rational purpose is conceivable---the slippery slope leads, inevitably, to the most extreme, dire results. A majority of Americans believes that laws covering the sale of firearms (including compiling lists of who buys what) should be stricter.

The reality that there are nasty folks in the world who our military needs to strike before they strike us (Americans or not) and under the conditions and criteria outlined in the DOJ memo or that there are people who shouldn’t be allowed to arm themselves and that monitoring gun purchases is among the most logical routes to that end seem evident but the position of the slippery slope advocates obscures the common sense view.

It is always possible that there will be over-reach, that the wrong person might be targeted by a drone strike or that over-zealous bureaucrats will try and regulate hunting guns and the like and that government will take well intentioned efforts too far---but that over-reach is not inevitable.

The fact that bad things might happen does not negate the argument that some reasonable good things should happen. The worst case scenario shouldn’t prevent acting reasonably and in a measured way.

The illogic of the slippery slope method of policy making was cogently answered by the famous dictum of Justice Oliver Wendell Holmes when faced with the question of how he could allow the federal government to be taxed by a state for the feds’ activities within the state. Precedent suggested that tolerating that power could lead to the states ultimately destroying the federal government by taxing it inappropriately:

Most of the distinctions of the law are distinctions of degree. If the States had any power it was assumed that they had all power, and that the necessary alternative was to deny it altogether. But this Court which so often has defeated the attempt to tax in certain ways can defeat an attempt to discriminate or otherwise go too far without wholly abolishing the power to tax. The power to tax is not the power to destroy while this Court sits.

Holmes wisely measured the degrees of an activity and knew that the courts and their limiting powers were a last recourse---not the first. The slippery slope and where things might end up don’t convincingly argue against logic and rational behavior that comports with the world around us---the ACLU and the NRA notwithstanding.

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